Selling Chametz for Pesach: Permitted Ha’arama?

April 7th, 2017

In bygone times, the number of Jews who used to sell their chametz on Pesach was relatively small. The enactment of selling one’s chametz does not appear in the Talmud, and it appears that in the distant past there was little need for it. In those times, each Jew would ensure that there should be no chametz in his possession when Pesach arrived, and whatever was left was burned, as the Torah commands (Shemos 12:15): “Only on the first day shall you clear the leaven from your houses.”

Over the ages, there arose a need to provide a practical solution for owners of production plants and breweries, for whom the festival of Pesach implied a tangible threat of financial collapse. Especially after the industrial revolution, and the mass production that emerged in its wake, the conventional means of dealing with chametz on Pesach became economically unviable.

The solution was to sell chametz to a non-Jew before Pesach, and to buy it back from him after Pesach. As we will see, this solution is not new to modern times, and it can be traced to Talmudic times (and even earlier); yet its application on an extensive scale and its widespread institutionalization is a a modern innovation.

Today, there is barely household among observant (and even many non-observant) Jews that does not perform a sale of chametz before Pesach.

The custom of selling chametz on Pesach has prompted voluminous writings on the part of halachic authorities, and remains to this day a common topic for poskim to dwell upon. One of the issues over which many quills have been broken is the technical means by which the chametz is transferred to the ownership of the non-Jew—the right kinyanim (halachic transfers) that must be utilized.

In this article we will leave aside the question of the right kinyanim (which is of relevance for the Rabbi rather than the layman), and even of the intricate laws of selling chametz—issues that we have focused on in the past—and discuss the general concept of selling chametz.

Selling chametz for Pesach is a type of ha’arama (“trickery”). It is a halachic mechanism that allows one to remain within the pale of halacha while not having to incur the losses of destroying one’s chametz before Pesach. To what degree should this mechanism be relied upon? Is there not a fictitious element to the sale, rendering it suspect as a legitimate means for “disposing” of chametz on Pesach? How does it compare with other examples of ha’arama we find elsewhere?

We will discuss these questions, and others, below.

Sources for Selling Chametz

The concept of selling chametz to a non-Jew in advance of Pesach first appears in the Tosefta (Pesachim 2:6-7). The Tosefta rules that if a Jew is on a ship with chametz in his possession, he may sell the chametz to a non-Jew on the boat, and buy it back from him after Pesach. The only provision is that the sale should be an absolute, unconditional sale. The Tosefta adds that it is even permitted for the Jew to hint that he will buy back the chametz after Pesach.

Rav Amram Gaon (Otzar Ha-Geonim, Pesachim 48) extends this halachah beyond the specific scenario of a ship, stating that it is permitted to sell chametz to a non-Jew and to buy it back after Pesach. Yet, he qualifies the application of the halachah to an occasional basis, writing that one may not rely on the method on a regular basis, and explaining that the sale cannot incorporate any element of ha’arama. He also demands that the chametz is physically transferred to the non-Jews property.

Over the years, however, we begin to find more lenient approaches. The Rashba (1:850) writes (citing Maharam of Rottenburg) that it is permitted to sell one’s chametz to a non-Jew under the understanding that “if you keep it until after Pesach I will buy it back from you,” and does not mention a problem with repeating the practice every year.

The leniency is taken a stage further by the Terumas Hadeshen (130), who writes that it is permitted (for one who cannot burn his chametz before Pesach) to give the chametz (with an “absolute gift”) to a non-Jew, or to sell it for paltry sum, even though he knows that the non-Jew will keep the chametz for him and return it to him after Pesach.

Moreover, the Beis Yosef (Orach Chaim 448) understands that it is permitted to employ a ha’arama mechanism for chametz on Pesach, explaining that the Tosefta never meant to restrict this practice, but only to forbid selling the chametz with a full condition to buy it back after Pesach. If the sale is unconditional, it is permitted to sell the chametz even when it is clear that it will return after Pesach.

Chametz at Home?

In the above sources we find permission to sell chametz to a non-Jew for the duration of the Pesach festival, even when it can be assumed that the non-Jew will sell or give back the chametz after Pesach. As the Rambam (Chametz and Matzah 4:6) stresses, the sale must be absolute and unconditional, so that the chametz entirely leaves the Jew’s possession for the duration of the festival.

However, we are yet to find permission to sell the chametz to a non-Jew and leave it in the Jew’s domain (sold or not) over Pesach, as the prevalent custom today.

The first to mention the concept of selling chametz as we know it is the Bach (Orach Chaim 448), who suggests the leniency on account of the circumstances that arose in his locality: “In this province, where most of our business is with alcoholic drinks, and they cannot be sold to non-Jews outside the house… it is permitted to sell all the chametz in the room to a non-Jew, and to sell even the room itself.”

Because the chametz is sold to a non-Jew, and even the room in which the chametz is present it sold, it follows that the chametz has left the Jew’s domain, and there is no longer any prohibition. The Magen Avraham (448:4) emphasizes that for the actual prohibition of chametz, it is sufficient to sell the chametz alone, without selling the room where the chametz is present—provided that the Jew does not accept responsibility for the chametz. Yet, he agrees that the room should also be sold, as other authorities also write (see Taz, 448:4; Mishnah Berurah 448:12).

It is clear from the wording of poskim that the leniency of selling chametz in the manner described above was stated concerning extraneous circumstances. The Eliyah Rabba (448:7) writes that under ordinary circumstances one may not rely on the leniency, even making a distinction between whisky (which may be sold) and beer (which may not be sold), because it is relatively easy to control the amount of beer in one’s possession.

Shut Ori Veyish’i (121) writes that in his day the large amounts of beer that pubs work with permits its sale over Pesach—but only on account of “grave financial loss among Israel.”

Reliance on Ha’arama

To understand the degree to which one can rely on practices of ha’arama, it is worth noting some similar instances, in which a sale mechanism is used to “circumvent” a halachic obligation.

The Mishnah in Temura (5:1) refers to a practice of ha’arama concerning the sanctity of a firstborn animal. In order to release a person from the responsibilities of a firstborn animal (which must be given to a Kohen), the Mishnah advises that a person to consecrate the animal while still in its mother’s womb. He can then use the animal as a person offering, and refrain from donating it to a Kohen.

Concerning Maaser Sheni, we find in the Mishnah (Maaser Sheni 4:4) that one can give one’s money to his children, and ask them to redeem the produce, rather than redeeming it himself.

One who redeems his own produce, opting to take the money to Jerusalem rather than bring the produce itself, must add a fifth to the value of the produce. However, when somebody else redeems the produce, no extra fifty is adduced to the sum. A person can “get out of” paying the extra fifth by giving his children money, and asking them to perform the redemption on his behalf.

There are many other examples of ha’arama. A person who wishes to rent an animal to a non-Jew, yet faces the halachic pitfall of the non-Jew working with his animal on Shabbos, can use the hefker (disowning) mechanism to permit the work (see Rema, Orach Chaim 246:3; the nature of the hefker is disputed among commentaries).

One who has difficulties in tevillas keilim can sell the utensil to a non-Jew, exempting him from the obligation of tevillah (Yoreh De’ah 120:16); one who forbade benefit from his property upon another, can still provide him with benefit by disowning his property (Nedarim 48a); a similar mechanism can be used for avoiding the obligation of biur (destruction) of shemittah produce (Yerushalmi, Sheviis 26a); and so on.

Clearly, then there is a broad base for ha’arama in a range of halachic issues.

Using Ha’arama for Chametz

The Bechor Shor (Pesachim 21a) calls the entire legitimacy of selling one’s chametz into question. In his analysis, it is only permitted to rely on the ha’arama concept concerning rabbinic laws; concerning Torah laws, it is not permitted to rely on ha’arama.

On the assumption that chametz is a Torah law, he therefore writes that one cannot rely on custom of selling chametz. One can argue that chametz should not be considered Torah law, since after “annulment” (bittul) the prohibition is only rabbinic. The Bechor Shor, however, relates to it as Torah law, since the fundamental prohibition is of course a Torah law.

However, the Chasam Sofer (Orach Chaim 42) challenges this position, based on the examples given above, which indicate that ha’arama can be utilized even concerning Torah law. This position is adopted by several acharonim (Mekor Chaim 448:12; Shut Tzemach Tzedek, Yoreh De’ah 102; Oneg Yom Tov 28; and others).

The Matter of Intention

An important source for reliance of ha’arama mechanisms is found in a teaching of Tosafos.

The Gemara teaches (Bechoros 3b) that Rav Mari b. Rachel used to transfer the ownership of his animal’s ear to a non-Jew, preventing the firstborn child of the animal from becoming sanctified. The Gemara writes that Rav Mari was punished for doing so, and all his animals died.

Tosafos question the custom, apparently prevalent in Tosafos’s day, of following Rav Mari’s practice. In their second explanation, Tosafos write that there is a distinction between the times of Rav Mari, and those of Tosafos: In the times of Rav Mari, another option was available for preventing the sanctity of a firstborn animal, for they knew how to cause a blemish to the animal even in its mother’s womb. Today, however, we are not familiar with the procedure, and therefore it is permitted to transfer ownership of an ear to a non-Jew, which is done to avert the halachic pitfall of a sanctified animal.

We see from Tosafos that when ha’arama is used to avoid a pitfall, it is commended. By contrast, when used to circumvent a mitzvah, it is frowned upon. So do we sell chametz to circumvent a mitzvah (of destroying chametz), or to avoid a pitfall (of possessing chametz on Pesach)?

The answer to this question may be contingent on the disputed matter of whether there is a concrete mitzvah to burn chametz before Pesach, or whether a person without any chametz has no mitzvah—the obligation is to be chametz-free on Pesach, and not to destroy chametz.

However, we can also base the assessment on the particular intention of each person. Somebody owning a store is not selling his great stocks of chametz to circumvent a mitzvah. Destroying his chametz would put him out of business, and selling the chametz is certainly avoiding a prohibition rather than avoiding a mitzvah. For a private individual with a small amount of chametz, the analysis can go the other way: selling the chametz get him out of the mitzvah, rather than out of the prohibition.

Conclusion

Because of the reservations mentioned by authorities, several poskim have written that one should not rely on the sale of chametz concerning chametzgamur (actual chametz, as opposed to doubtful chametz or chametz amalgams). Some, such as the Vilna Gaon, were even careful to avoid purchasing items of chametz that were sold over Pesach.

Yet, despite these reservations, it has become the widespread custom to perform a chametz sale in advance of Pesach. Some rely on the sale even for actual chametz, whereas others use the sale for items over which there is a concern for chametz, and “for safety’s sake” (to ensure that if some chametz was missed, it should be included in the sale; see Takanas Mechiras Chametz, Chap. 1, note 17, who writes that this is a worthy practice).

It is worth mentioning that today’s sale of chametz is better than it once was. Initially, anyone who had chametz in his possession, and was for some reason unable to burn or otherwise get rid of his chametz before Pesach, would make an individual contract with a non-Jew to sell his chametz. However, over time communities began to sell their chametz collectively, by means of the local rabbi, which means that our sales and contracts are far better than many used to be.

Mission Statement

The purpose of this site is to raise public knowledge of the importance of monetary dealings according to the Halacha. At the site you can expand your knowledge with in-depth articles, and in addition consult online with the rabbis of the Beit Midrash on Halachic issues that interest you.
I hope that you enjoy the site and that it will fulfill its goals.
We await your comments and suggestions.
Sincerely, Rabbi Yosef Fleischman.
Av Beis Din “Nesivos Chaim” & Head of Kollel